GFI® End-User License Agreement
For: GFI FaxMaker®; GFI Archiver™, GFI MailEssentials®; GFI WebMonitor®; GFI LanGuard®;
GFI Network Server Monitor®; GFI EventsManager® and GFI EndPointSecurity®
(“Software”)
PLEASE CAREFULLY REVIEW THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA”). THIS EULA IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND GFI.
BY CLICKING ‘I AGREE’ OR DOWNLOADING, OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS EULA. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS EULA, IMMEDIATELY RETURN, DELETE OR
DESTROY ANY AND ALL COPIES OF THE SOFTWARE YOU MAY HAVE.
This EULA is a legal agreement between you, and if you are located (i) in the USA, South America, Canada – GFI USA Inc, or (ii) in the European Union or elsewhere other than USA, South America, Canada – GFI Software Development Ltd (collectively “GFI”) for this GFI product, which includes Software and any associated media, printed materials, and “online” or electronic documentation (collectively “Product”). Future releases of the Product may contain amendments to this EULA.
1. 1. LICENSE GRANT. GFI Product is licensed and not sold. GFI grants you, from date of first use for the duration of the license you
have purchased, or otherwise as set out in the applicable Product documentation or unless terminated in accordance with the terms herein, the following rights only if you comply with all of the terms of this EULA. Depending upon the type of Product purchased, a license key or other technological protection measure may automatically limit your use or the functionality of the Product. You may install, use, access, display and run one (1) copy of the Product on one or more Units (as defined below), as long as you use the Product on no more than the maximum number of Units for which you have acquired a valid license. This EULA covers any updates, new releases or enhancement(s) of the Product or Support Services, which GFI may make available to you from time to time. You may make one (1) additional copy of the Product for back-up or archival purposes.
2. 2. UNIT OF LICENSE GRANT. The Unit by which the Product is evaluated or licensed varies by Product type. GFI FaxMaker is
licensed by User; GFI FaxMaker Server is licensed for use with one (1) GFI FaxMaker Server and four (4) Lines – additional GFI FaxMaker Servers and/or Lines can be licensed. Each GFI FaxMaker Server license constitutes an Active Directory domain license, i.e., the Product will only “see” the Active Directory users that are within the same Active Directory domain where the GFI FaxMaker Server has been installed. GFI Archiver, and GFI MailEssentials are licensed by Mailbox; GFI WebMonitor is licensed by Seat; GFI Network Server Monitor is licensed by IP Address; GFI LanGuard and GFI EventsManager are licensed by Node (Windows® or non – Windows server or workstation) and GFI EndPointSecurity is licensed by Computer.
3. 3. DEFINITIONS. When used, these terms will have the following meanings: “Add-On”- when additional copies of the same
Product are licensed; “Computer” – Windows workstation, Windows home workstation or Windows server, or as agreed or as otherwise set out in any applicable Documentation, non – Windows equivalent; “Hardware” – GFI branded computer related hardware; “IP Address” – a number assigned to each Computer or device which is active on the network; “Lines” – the fax lines available for usage by GFI FaxMaker to send/receive faxes. “Mailbox” – a Mailbox is defined by Product, for GFI MailEssentials: Mailbox is defined as the number of Active Directory users or email addresses being protected, for GFI Archiver - Mailbox is defined by Active Directory users for whom email archiving is enabled; “Main Product”– a particular Product that is licensed for the first time with or without a license key or TPM; “Node” – servers, workstations, mobile devices or other network end points such as firewalls, routers, switches, phone systems, etc. that have one or more IP Addresses; “Seat” – an individual or an IP Address that accesses the internet; “Unit” – each Product has a unit (s) by which it is licensed as set out in Section 2 Unit of License Grant. The term “Unit” is used generically when referring generally as a Product licensing measure; “User” – end user of the Products or Hardware; “Windows Server” – machines running any compatible version of the Windows operating systems as set out in Product’s applicable technical specification documentation, which may be amended from time to time.
4. 4. HTTPS SCANNING. When HTTPS scanning is enabled in GFI WebMonitor, HTTPS traffic will be decrypted and its contents
inspected. GFI shall not be liable and it is solely your responsibility to: (i) ensure that enabling HTTPS scanning in GFI WebMonitor does not infringe any compliance, privacy or other legislation or regulations in the jurisdiction in which you use it, and (ii) exclude sites from HTTPS scanning if necessary for compliance with any laws or regulations.
5. 5. SUPPORT. If you have a valid Product support contract with GFI and are current with payments, GFI will provide you with the
support described in this paragraph (“Support”) on a local office hours basis. In GFI’s sole determination, Support shall consist of: (i) telephone or electronic support to you in order to help you locate and, on your own, correct problems with the Product and/or (ii) supplying extensions, enhancements and other changes that GFI may make to the Product and which is made publicly available,
without additional charge, to other licensees of the Product that are enrolled in Support.
User Authorised Installations: Upon mutual prior written agreement by both parties, GFI may, but shall not be required to supply code corrections to you to correct Product malfunctions in order to bring such Product into substantial conformity with the published operating specifications for the most current version of the Product, unless your unauthorized modifications hamper such corrections or cause the malfunction.
Failure to renew your Support subscription may result in your loss of right to receive Product feature or Content updates, or shall result in the automatic deactivation, or termination of the Product.
1. 6. CONFIDENTIALITY. The Product, in all formats existing, are a trade secret of and proprietary to GFI, its suppliers and / or licensors,
including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. You shall maintain Product confidence and prevent disclosure of the same by using a reasonable degree of care. You shall not disclose the confidential aspects of the Product, or part thereof, to anyone for any purpose.
2. 7. PRODUCT EVALUATIONS AND FREEWARE. If available, you may evaluate the Product, which may have reduced functionality, for
up to thirty (30) days, at no cost. You may evaluate the Product only to determine whether to license the Product. You may only evaluate a Product once. At the end of the evaluation period, you must either license the Product or cease all use of such Product. Your use of the Product during an evaluation period or for any Product that is offered as freeware shall be without warranty of any kind and is provided “AS IS”. GFI has no duty to provide support to you during your use of the Product or any evaluation period. Any Product available as freeware or for evaluation purposes must not be used for commercial purposes or in high–risk situations. 3. 8. BETA TESTING. Beta versions of Product or Hardware may be provided to you without warranty of any kind, “AS IS” and subject
to the Confidentiality conditions above. Such provision is done so only for the purpose of assisting GFI with testing functionality or compatibility and on the express condition that you provide GFI with truthful, accurate and complete feedback, comments, analysis in whatever format you may wish, or are directed by, to provide such to GFI (“Contribution”). You expressly acknowledge that your participation in any beta testing is undertaken by you on a volunteer basis and that you shall have no right in the beta Product or Hardware or Contribution, whether in original form (as provided to you) or in respect of any derivative work (whether or not based upon, in whole or in part, any participation or feedback you may make). Notwithstanding the foregoing, you agree to grant to GFI a royalty – free, perpetual, transferable license to commercially use and sub-license in GFI’s sole discretion, any and all Contribution. 4. 9. INTELLECTUAL PROPERTY RIGHTS: The Product and Hardware is protected by world-wide copyright, trademark, patent and other
intellectual property laws and treaties and belong to GFI, its licensors and any applicable third party. You acknowledge that (i) rights in the Product are licensed (not sold) to you, and that you have no rights or title in, or to, the Product other than the right to use them in accordance with the terms of this EULA and (ii) Open Source and / or third-party software may be incorporated into the Product. GFI, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Product and Hardware.
5. 10. RESTRICTIONS. Except as otherwise expressly provided under this EULA, you shall have no right and you shall not permit any third
party to: (i) transfer, assign or sublicense the limited license rights granted to you in this EULA to any other person, or entity, or use the Product on any equipment other than an authorised Unit, and you acknowledge that any attempted transfer, assignment, sublicense or unauthorised use shall be void; (ii) make error corrections to or otherwise modify or adapt the Product or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of Product or of any files contained or generated using Product by any means whatsoever or otherwise reduce the Product to human-readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; or (iii) use or permit the Product to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of GFI; or (iv) circumvent or provide the method or means to circumvent any TPM in the Product; or (v) use the Product in any manner not expressly authorised herein.
6. 11. OPEN SOURCE. Part of the Product may incorporate and consist of third party open source software (“Open Source”), which
you may use under the terms and conditions of the specific license under which the open source software is distributed. You agree that you will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s). Any Open Source provided with or contained in the Product is provided “AS IS” and without any warranty of any kind.
7. 12. CONTENT UPDATES; TECHNOLOGICAL PROTECTION MEASURES. Some Products require, for optimum use and GFI, in its sole
discretion, may provide to you, in a number of formats (feeds, definition files etc.), content that is automatically, synchronised or updated from time to time with GFI’s servers or systems, which may relate to anti–virus, anti–spamming or anti phishing activities (“Content”). Such content may be provided for a limited time, from time to time, or in accordance with an applicable and valid Support agreement. The Products may also contain technological protection measures, for instance a license key or code, that prevents unlimited copying, or limit time of use or functionality in accordance with the type of license that you purchase (“TPM”). You consent that the Product will automatically contact GFI to receive Content, in particular, but not limited to if and when any of the following events occur: (i) the Product is successfully installed by you; (ii) you fail to install the Product successfully; (iii) the Product has been successfully configured; (iv) there are changes to the Product’s license key or TPM; and/or (v) the Product is uninstalled. GFI has offices worldwide and you acknowledge and consent that any data collected may be sent to any GFI office or affiliate for
processing, including locations outside of the USA and European Union.
8. 13. TERMINATION. Without prejudice to any other rights, GFI may terminate, in part or in whole, without notice, this EULA if you do
not abide by its terms, in which case you must cease all use of the Product, destroy all copies (including any components) of the Product, or, at GFI’s request, return such copies to GFI. Sections 6 through 11, 13 through 21, 24 and 25 shall survive any termination of this EULA.
9. 14. CONSENT TO USE OF DATA. GFI respects your privacy and shall adhere to the terms of its Privacy Policy which can be found at: www.gfi.com/legal/global-privacy-policy. You agree that GFI, its subsidiaries and affiliates may collect and use personally identifiable information, not limited to technical information about your computer, system and application software that is gathered periodically and automatically to facilitate and improve upon the provision of software updates, Support, Content, TPM and other services to you. If the Product is GFI WebMonitor, you agree that the Product will send URL requests, whilst they are being browsed, to GFI’s or GFI’s licensors’ servers for categorization purposes.
10. 15. DATA PROTECTION. Each party shall comply with its respective obligations under applicable data protection laws (“DPL”). Neither
party shall do any act that puts the other party in breach of its obligations as per this Section nor shall anything in this EULA be deemed to prevent any party from taking any action it reasonably deems necessary to comply with DPL. You agree that during the course of this EULA: (i) in respect of data you collect, you alone shall determine the purposes for which and the manner in which personal data are, or will be, processed; (ii) you are the data controller in respect of all personal data you may process; and (iii) you consent and have obtained consent from the data subject (third party) to send their personal data to GFI in countries outside the European Union or USA. GFI agrees that, with your express consent, it is the data processor in respect of the personal data processed as provided by you, during the course of this EULA. You warrant and undertake that any instructions given by you to GFI will at all times be in accordance with the requirements of DPL. You shall fully indemnify GFI against any loss, damages, liability and costs (including attorneys’ fees) incurred by GFI as a result of any breach of DPL by you. You agree that GFI may disclose any information held about you or via you to legitimate judicial or legal authorities. For more information regarding how GFI uses your data, please see GFI’s privacy policy, which can be found at www.gfi.com/legal/global-privacy-policy.
11. 16. EXPORT CONTROLS. You agree that the Product or Hardware will not be used, shipped, transferred or exported into any country
or to anyone: (i) which the EU or UN has embargoed goods; (ii) where the national legislation of the relevant EU Member State has embargoed goods; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Product or Hardware, you represent that you are not located in, under the control of, or a national or resident of any such country or on any such list and you take full and sole responsibility for such use.
12. 17. LIMITED WARRANTY:
Different countries have different consumer (someone who uses the Products or Hardware outside of their business or trade) laws and regulations depending upon your country of purchase or residence. These different statutory consumer laws may provide alternative remedies than that provided hereunder. The protection provided under this warranty is in addition to such statutory consumer laws and this warranty is not intended to limit or exclude your consumer statutory rights as it relates to non-conformity of a sales contract.
GFI SOFTWARE: GFI warrants that the media upon which any Software is distributed will be free from defects for a period of ninety (90) days from the date of original purchase by you of the Software. No warranty is provided to you after this period. Any supplements or updates to the Software, including without limitation, any (if any) service packs, patches or fixes provided to you after the expiration of the ninety-day limited warranty period are not covered by any warranty or condition, neither express, implied nor statutory and are provided ‘AS IS’. This warranty is personal to you and cannot be transferred.
GFI HARDWARE: Please refer to the applicable limited warranty, which was supplied to you at the time of original purchase of the Hardware. In the absence of any applicable Hardware limited warranty, these terms apply: GFI’s limited warranty covers Hardware as against defects in materials and workmanship under normal use for a period of one year from the date of purchase of the original Hardware purchase. This warranty is personal to you and cannot be transferred.
REMEDY: If Software media or a Hardware defect arises and you have a valid claim, GFI at its option may: (1) repair the defect at no cost to you, using new or refurbished parts that are equivalent to new in performance and reliability, or (2) exchange the Software media or Hardware with Software media or Hardware that is new or refurbished (that is equivalent to new in performance and reliability), which is at least functionally equivalent to the original Software Media or Hardware, or (3) refund the purchase price of the original Software media or Hardware subject to your provision of a valid receipt of purchase.
The warranties set out above do not apply to damage: (1) to consumable parts i.e. batteries, cosmetic, (2) caused by non GFI product, or (3) caused by your failure to follow GFI’s instructions whether such instructions are given to you orally or are contained in any GFI documentation, whether printed or online, (4) by non–normal use, fire, abuse or misuse, or use outside of the products’ permitted
uses, or (5) by non–GFI service or repairs (except where GFI has instructed you to undertake a User Installation and you adhere to all of GFI’s instructions), or (6) where the Product’s or Hardware’s serial number or other unique identifier is removed or defaced. You will receive the remedy elected by GFI without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Hardware or Software media to GFI, handing and re-stocking fees of 15%). This Limited Warranty is void if failure of the Software media or Hardware has resulted from accident, abuse, misapplication, abnormal use, a virus, or use after an upgrade was made available to you. Any replacement Hardware or Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
EXCEPT AS PROVIDED ABOVE, THE PRODUCT AND HARDWARE IS PROVIDED TO THE USER “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. GFI DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE PRODUCT AND HARDWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT OR HARDWARE WILL BE CORRECTED. FURTHERMORE, GFI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT OR HARDWARE PROVIDED IN RESPECT OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, GFI LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY GFI IN ITS SOLE DISCRETION. SOME STATES OR COUNTRIES DO NOT ALLOW SUCH LIMITATION AND THEREFORE THIS LIMITATION MAY NOT APPLY TO YOU.
1. 18. LIMITATION OF LIABILITY:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GFI, ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT OR HARDWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, UNDER ANY THEORY OF LAW OR FAULT OF GFI OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR LICENSORS, AND EVEN IF GFI OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS. GFI EXLCUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY PRODUCT. SOME STATES OR COUNTRIES DO NOT ALLOW SUCH LIMITATION AND THEREFORE THIS LIMITATION MAY NOT APPLY TO YOU.
Notwithstanding the foregoing, the maximum liability that GFI shall incur hereunder shall be limited to the actual price paid by you for the Product or Hardware.
1. 19. INDEMNIFICATION. You agree to indemnify, defend, and hold GFI, its parent, subsidiary, or affiliate organizations, officers, agents
and employees, harmless from any claim, loss, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of your breach of any provision of this EULA, your negligent or wrongful acts, and/or your violation of any applicable laws.
2. 20. ENTIRE AGREEMENT. This EULA (as may be amended from time to time) is the entire agreement between you and GFI relating to
the Product and the Support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or Support services. To the extent the terms of any GFI Terms of Sale, policies or programs conflict with the terms of this EULA, the terms of this EULA shall prevail and control.In addition, the terms set out in this EULA shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of yours, whether set out in a purchase order or alternative license, and any and all such additional or conflicting terms shall be void and shall have no effect. If this License is translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control.
3. 21. GOVERNING LAW. (a) If you purchased the Product or Hardware in or are habitually resident within the USA, South America or
Canada, this EULA shall be governed by, subject to and construed in accordance with the laws of the State of Florida, excluding its conflict of laws provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in Florida, or (b) If you purchased the Product or Hardware in or are habitually resident elsewhere, this EULA shall be governed by, and construed in accordance with, the laws of England and Wales and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in England, and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this EULA or the transactions contemplated hereby.
4. 22. PUBLICITY. You agree that GFI may refer to the name of your corporation as a customer of GFI, both internally and in externally
5. 23. U.S. GOVERNMENT RIGHTS. If you are obtaining Software on behalf of any part of the United States Government, the Software
and any documentation shall be deemed "commercial Software" and "commercial computer Software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227-19, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software shall be governed solely by the terms of this EULA shall be prohibited except to the extent expressly permitted by the terms of this EULA.
6. 24. EQUITABLE RELIEF. The parties agree that irreparable damage would occur if any provision of this EULA were not performed in
accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
7. 25. MISCELLANEOUS. The delay or failure of either party to exercise any right provided in the Agreement shall not be deemed a
waiver. This EULA: (i) may not be assigned by you. Any purported assignment will be null and void (ii) may not be amended by you, but GFI may amend the EULA from time to time and shall post any amended EULA on its website at www.gfi.com, (iii) and the remedies of the parties are cumulative and will not exclude any other remedies to which the party may be lawfully entitled, (iv) constitutes the entire understanding between the parties with respect to the subject matter of this EULA and supersedes all written and oral prior agreements, negotiations and discussions between the parties relating to it, (v) if in part (or part of any provision) is found illegal, invalid or unenforceable, that provision shall apply with the minimum modification necessary to make it legal, valid and enforceable; and (vi) is for the sole benefit of GFI and you and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email to legal@gfi.com (with evidence of effective transmission). All notices must be addressed to GFI Legal Department c/o: General Counsel. You may not assign, pledge or otherwise transfer this agreement, nor any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect or interpretation.
